Dissenting Opinion by
Mb. Justice Musmanno.In May, 1777, Stephen Girard of Bordeaux, France, landed in Philadelphia where he took up permanent residence and entered into business. Success smiled on his various commercial enterprises and, as ship owner, banker, and merchant, he accumulated an amount of wealth that made his name one to be conjured with on the American Rialto. As he climbed the ladder of financial achievement he held aloft at all times the flag of gratitude for the opportunities afforded him in the New World. He became a citizen of the United States and was elected a member of the Philadelphia “City Councils.”
In 1830, having reached that age when a good man contemplates how the shadow of his life may still be helpful to the living after he will have departed, he went into consultation with a scrivener, his conscience, his sense of appreciation and undying spirit of patriotism. From the conference emerged his last will and testament which, when probated in 1831, shone as a lyrical paean to Philadelphia which he loved with a devotion akin to that which CincinUatus is reputed to have borne toward Rome. Girard revealed through this last writing that he could not do too much for the City which had been a foster mother to him. He left her funds with which to lay out new streets, pave and widen others, remove wooden houses, cleanse the docks on the Delaware, and supply water for various sections of the City. He provided for a competent police force, a division of the City into “watch districts,” and in general made available facilities to “improve the city propérty, and the géneral appearance of the *458city , itself; and, in effect diminish the burden of taxation, now most oppressive especially, on those, who are the least able to bear it.”
The ivill of Julius Caesar, dramatically proclaimed to the populace by Marc Antony, which gave to every Iloman. citizen the sum of 75 drachmas* and to the general citizens the right to breathe fresh air in his “private arbours and orchards,” was a rather paltry posthumous gift in comparison to what Girard gave to Philadelphia.
Girard was generous to public charitable institutions as the Philadelphia Hospital, the Pennsylvania Institution for the Deaf and Dumb, the Orphan Asylum of Philadelphia, and various other organizations for relief of the poor and the distressed.
. . He bestowed a legacy on the public schools of Philadelphia. He bequeathed $300,000 to the Commonwealth of Pennsylvania for internal improvements by canal investigation. He left some modest sums to relatives, friends, and servants, but the mass of his estate was dedicated to the public welfare. Thus, he said: “And whereas, together with the object just adverted to, I have svncerely .at heart the welfare of the city of Philadelphia, and, as a part of it, am desirous to improve the-neighborhood of the river Delaware, so that the health of the citizens may- be. promoted and preserved, and that the eastern part of the city may be made to. correspond better with the interior: Now, I do give■ devise and bequeath all the residue and remainder of my-real and personal estate of every- sort and hind and wheresoever situate . . . unto cThe Mayor, Aldermen and citizens of Philadelphia’ their successors *459and assigns in trust to and for the several uses intents and purposes hereinafter mentioned and declared of and concermng the same.”*
Of this residue in trust he allocated two million dollars for the establishment of a college for “poor white male orphans.” This college later became known as the Girard College and is the subject of the instant litigation.
It is difficult to visualize the will of a private individual more dedicated to public business than Stephen Girard’s. Schools, streets, docks, canals, river distribution, public hospitals and asylums are items which one finds in the budget of nations, states, and municipal corporations, not private householders. These are matters for the consideration of the State, and indeed the State of Pennsylvania recognized that fact at once.
Only three months after Girard’s death the General Assembly of Pennsylvania (on March 24, 1832, P. L. 176) enacted legislation directing the City of Philadelphia to carry into effect the will of Stephen Girard.
Two weeks later, (Apr. 4, 1832, P. L. 275) by statute, Pennsylvania authorized the City of Philadelphia to provide “for the election or appointment of such officers and agents as they deem essential to. the due execution of the duties and trusts enjoined and created by the will of Stephen Girard.”
On February 27, 1847, (P. L. 178), the Legislature passed a special Act making Philadelphia the guardian of the person and property of every child admitted to Girard College. The same Act authorized Philadelphia to bind out Girard College orphans to suitable occupations from the age of 14-18 to 21.
*460The college was opened on January 1, 1848, under the direct management, supervision, and authority of City Council. The City Council ran the college as authoritatively and completely as an engineer runs a locomotive. From March 21, 1833, until December 18, 1869, the City Council passed 48 ordinances dealing exclusively with Girard College. The ordinances covered such subjects as erection of buildings, the appointment of architects, purchase of construction materials, buying of books, desks, blackboards and other educational paraphernalia, appointment of committees to administer the college, the making and approving of contracts appertaining to the college in all its various phases of activities, the appointment of, and payment of salaries to principals, teachers, janitors, and other employees, organization of faculty and courses of instruction, employment of counsel, etc., etc.
The General Assembly of Pennsylvania at no time relinquished its control over Girard College and it never relaxed its concern to make of the enterprise an institution worthy of the State. On April 20, 1853, (P. L. 624), it passed an Act providing that “the mayor, aldermen and citizens of Philadelphia, or such persons as they shall direct and appoint, shall bind by indentures as apprentices, the orphan children in the Girard College for Orphans.”
By 1869 it became evident to the State Legislature that the normal duties pressing upon a City Council in governing a large metropolitan city the size of Philadelphia were too many and onerous to allow for an active management, superintendency and operation of a college. Accordingly, on June 30, 1869 it passed an Act (P. L. 1276) creating the Board of Directors of City Trustees to be composed of the Mayor of Philadelphia, the Presidents of Select and Common Councils and twelve other citizens tó be appointed by the *461judges of the Court of Common Pleas of Philadelphia County. This Board, which came to be known as the Board of City Trusts, took over the direct and immediate management of Girard College. Under its direction and control the College flourished. The $2,-000,000 originally bequeathed has now, through good business methods, as well as wise and careful investing, become $98,000,000, with an annual income of $2,000,000. The real property of the Girard estate is worth $10,000,000. Over Girard College hovered not a cloud of apprehension or fear for the future, until the Orphans’ Court of Philadelphia entered an order which has brought about the lamentable state of affairs which is the subject of the present litigation.
On September 24, 1954, two Negro fatherless boys, William Ashe Foust and Robert Felder, aged 8 and 7 years respectively, applied for admission to Girard College on the basis that they qualified in every respect under existing law to meet entrance requirements. The Board of City Trusts rejected the applications, asserting that it had no power to admit “other than white boys to Girard College.” The boys, as well as the City of Philadelphia and the Commonwealth of Pennsylvania, petitioned the Orphans’ Court to order the admittance of the orphan applicants. The Orphans’ Court dismissed the petitions. This Court on November 12, 1956, affirmed the action of the Orphans’ Court, thus excluding Foust and Felder from Girard College. (386 Pa. 548).
On appeal thereto, the Supreme Court of the United States, on April 29, 1957, reversed the judgment of this Court, with the declaration that: “The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they - were *462Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education, 347 U S 483.” It accordingly remanded the cause “for further proceedings not inconsistent with this opinion.”
This Court, then, on June 28, 1957, vacated the decrees of the Orphans’ Court excluding Foust and Felder and remanded the cause to the Orphans’ Court “for further proceedings not inconsistent with the opinion of the Supreme Court of the United States as set forth in its said mandate.”
On September 11, 1957, the Orphans’ Court of Philadelphia County, without any hearing and without allowing Foust, Felder, the City of Philadelphia, or the Commonwealth of Pennsylvania, who are all party litigants, an opportunity to be heard in argument or otherwise, dismissed the petitions of Foust and Felder and ordered the removal of the Board of Directors of City Trusts. On October 4, 1957, the same Court appointed thirteen named persons as trustees of the Girard Estate on the assumption that, being private individuals, they would not be subject to the restrictions of the Fourteenth Amendment and could accordingly legally exclude Foust and Felder from the Girard College because they are Negroes.
I pass over without discussion the action of the Orphans’ Court in refusing the parties a hearing on so momentous a piece of litigation. To dwell on this manifest denial of due process of law would be to expatiate on the obvious, emphasize the glaring, and underline the italics of the horizon. But, putting aside the Court’s palpable denial of the fundamental right of every litigant to be heard before a cause is adjudicated against him, I submit that there was ample reason for this Court to reverse the Orphans’ Court because its errors in the disposition of this case have not been *463merely procedural, spasmodic, or minor; they have been constant, undeviating, and monumental.
In its opinion of September 11, 1957, the Orphans’ Court said: “It is a universally accepted rule of law that the disqualification or incompetency of a trustee shall not be permitted to defeat the purposes of a charitable trust, nor to impeach its validity, nor to derogate from its enforcement — the trustee must be fitted to the trust and not the trust to the trustee.”
But the Supreme Court did not say that the Board was disqualified or incompetent because it refused to admit Foust and Felder to Girard College. It only said that under the law of the land, the Board could not exclude these children. No one charged the Board with misconduct, no one complained that its management of the Stephen Girard was not exemplary, no one moved for dismissal of the Board. The Act of June 30, 1869, which brought the Board into existence has not been repealed or its powers minimized. By what authority may the Orphans’ Court of Philadelphia County nullify an Act of the General Assembly?
Nor did the Supreme Court say that if the Board of City Trusts was removed as trustee, its successor could exclude Negroes from Girard College.
The fact of the matter is that no trustee, no matter how appointed, may practice in the Girard College a discrimination which is forbidden by the Fourteenth Amendment. The Girard College, because of the nature of its origin, its legislative history, its councilmanic management, its municipal control and subservience to governmental supervision is as much a public institution as the University of Pennsylvania and is, therefore, bound by the decision of the Supreme Court of the United States in Brown v. Board of Education, 347 U. S. 483.
*464It is no answer to this statement to say that the Girard College had its genesis in private funds. The Commonwealth of Pennsylvania was once a private grant and the Island of Manhattan once belonged to a private tribe of Indians.* Land and institutions may become public through purchase, through dedication, and through use. Girard College is public because Girard so planted it and because its whole growth has been accomplished in the orchard of governmental care.
A reading of the will should be enough in itself to convince the mind that Girard brought into play every possible trumpet of the English language to proclaim that his whole fortune was to be devoted to the public welfare irrevocably. With the exception of a few small bequests, long ago satisfied, Girard’s entire estate is now in the hands of the City of Philadelphia. In the case of Soohan v. City of Philadelphia, 33 Pa. 21, 28, this Court said: “This sacred trust was confided by Stephen Girard to the mayor, aldermen, and citizens of Philadelphia, who, by legislative enactment, have been succeeded by the City of Philadelphia . . . The directors of the Girard College are the creatures of an ordinance and are merely the agents of the real trustee, the city.”
Girard was so determined to prevent his estate from falling into the classification of a private institution that he declared that if the City of Philadelphia failed to carry out the provisions of his will, his estate would pass to the Commonwealth of Pennsylvania, and if the State violated his wishes, the United States would be*465come the final beneficiary. Is it not evident, then, that the action of the Orphans’ Court, in turning the Girard estate over to private individuals, strikes at the very jugular vein of Girard’s expressed intentions?
As a matter of law, the Orphans’ Court cannot give away Girard College any more than it can give away a public park or City Hall.
The Supreme Court of the United States in its Opinion on April 29, 1957, said: “The will named as trustee the City of Philadelphia. The provisions of the Will were carried out by the State and City and the college was opened in 1848.”
If litigation had arisen over some college action performed in 1848, there could be no doubt, under this language of the Supreme Court, that, as of 1848, Girard College would be accepted as a public institution. How much more must it be a public institution today when we realize that since 1848 the City of Philadelphia and the Commonwealth have exercised unceasing jurisdiction over Girard College?
By law and by provisions of the Girard will, the status of Girard College has been one of constant State and municipal responsibility. The launching of Girard College and its administration over the decades have brought into play governmental police powers and rights of eminent domain which could not possibly be exercised by private trustees. Members of the Legislature visit and inspect Girard College; its accounts must be open at all times to State inspection; the City of Philadelphia is required to submit reports on the College to the Legislature. The Treasurer of the City of Philadelphia handles the funds of the Girard Estate. The City Controller audits its accounts. The City is guardian of the persons and estates of the *466students. In the latter capacity it holds $2,940,716.16 in property.*
The principal body involved here is not the Board of City Trusts as such, but the City of Philadelphia itself. The City is not merely a trustee. It acts for the inhabitants of Philadelphia. It is a beneficiary of the trust. The Act of June 30, 1869, creating the Board of City Trusts, provides: “The duties, rights and powers of the City of Philadelphia, concerning all property . . . dedicated to charitable uses or trusts, the charge or administration of which is now or shall hereafter become vested in ... the city ... shall he discharged by said city through ... a board composed of fifteen persons, including the mayor of said city . . . who shall exercise ... all the duties and powers of said city . . . concerning any such property appropriated to charitable uses ... to the extent that the same have been or hereafter may be, by statute law or otherwise, vested in or delegated to the said city ...”
In an interpretation of the Act of 1869, this Court said in the case of Wilson v. Bd. City Trusts, 324 Pa. 545, 555: “We cannot disregard the fact that the Mayor is the duly elected executive of one of the beneficiaries, the City, and that he represents not only himself as an individual but to a certain extent the citizens of Philadelphia who constitute the beneficiaries of all the trusts.”
For 126 years Girard College has been administered as a public institution by public officials in their public capacities for the benefit of the public. If everything of a governmental character imbedded in the very sinews and fibers of Girard College were to be removed, it would be like withdrawing from a modern office *467building its structural framework. Take away the steel beams and columns of the Empire State Building and it would collapse into a mass of stone, bricks, mortar, glass, and debris. Take away the governmental backbone of Girard College and it will be a shapeless mass of indirection and purposelessness. The action of the Orphans’ Court if unreversed, creates a condition which approaches the dignity of chaos. It opens up a Pandora’s box of dilemmas, namely:
1. The Board of City Trusts is required to report to the City Council, the State Legislature, and the Courts of Common Pleas. Will the new board report to the City Council, Legislature, and Court of Common Pleas? If it does, then will its action not be State action? If it does not, how can the Orphans’ Court decree do away with a requirement of the State Legislature?
2. Since the City remains as guardian of the person and estate of Girard College students, will that guardianship not bring the City within the application of the Fourteenth Amendment since the City is a branch of sovereign government?
3. While estoppel cannot operate against a State, is it not clear in honor and justice that when the Legislature of Pennsylvania, by the Act of 1832, enacted legislation which confirmed the State’s acceptance of $300,000 bequeathed to it by Girard, it bound itself to a governmental management and supervision over the Girard Estate?
4. The Girard will left to the City the working out of details because the City Council is elected by the people. XXI, Sc. 9, 28a. But what opportunity will the people have to control the actions of private trustees?
5. The Girard funds were mingled with City funds. After more than a century of public management, is it *468possible to determine the accretion due to public management, and will that accretion be paid back?
6. The Act of 1847 provided that students Avho reached 18 years of age were to be bound out by the City of Philadelphia to suitable occupations until they reached the age of 21. Will the City continue to do this?
7. Does the appointment of private trustees to manage Girard College make the college a private school? And Avill it now pay the taxes which are assessed against all private schools?
8. Etc.
9. Etc.
In order to make of Girard College a private institution it Avould be necessary to repeal at least five Acts of the Pennsylvania General Assembly;* it would be necessary to nullify 48 Ordinances of the Philadelphia City Council; it would be necessary to strip the College of all the public maintenance, supervision, and operation it has had for 126 years. It would be necessary to pay back all salaries paid public officials who have Avorked in the maintenance and operation of Girard College. The Orphans’ Court can brandish no legal wand with which it can wipe out 126 years of continuous governmental control and shrink the oak tree of the Girard College of today into the acorn left by Stephen Girard. It must always be kept in mind that when the buildings of Girard College were finally constructed the fund of $2,000,000 left by Girard was practically exhausted. It was the good business judgment exercised by the Philadelphia City Council and the equally wise administration, under State direction, demonstrated by the Board of City Trusts which *469revived the fund and finally brought it to its present opulent state of $98,000,000.
In this Opinion I am first directing my attention to the fallacies in the Orphans’ Court’s decisions so that we can better and more easily understand what I regard to be the errors of this Court which has affirmed the Orphans’ Court action. The Orphans’ Court ordered what is legally and physically impossible. Girard College is intrinsically, architecturally, and economically* a creature of the State. The Orphans’ Court has no jurisdiction to remove the Board of City Trusts. Under the Act of 1869, members of the Board may be removed only by vote of two-thirds of membership of the Court of Common Pleas (made up of 21 judges) of Philadelphia County.
The Orphans’ Court says in its opinion: “Our course has been clearly charted.” The charting to which it refers is the statement made by the Majority of this Court in its decision of November 12, 1956 (386 Pa. 548, 566) : “Even if the Board of Directors of City Trusts were deemed to be engaged in ‘State action’ in the administration of the Girard Trust, petitioners would nevertheless not be entitled to the remedy they seek. If the city, because bound in its public or governmental actions by the inhibition imposed upon it by the Fourteenth Amendment, cannot carry out a provision of Girard’s will in regard to the beneficiaries of the charity as prescribed by him, the law is clear that the remedy is, not to change that provision, which, as an individual, he had a perfect right to prescribe, but for the Orphans’ Court, which has final jurisdiction *470over the trust which he created, to' appoint another trustee.” (Emphasis in original).
This advice on the part of the Majority of this Court, I must say with all respect, was not a very wise one. Instead of following the channel marked by the Constitution, the advice indicated that a Northwest Passage' might be found which would permit the Orphans’ Court to reach a land where it had no right to be at all. Considering the public nature of Girard College there is no way for any administrator of that institution to avoid the Fourteenth Amendment.
On October 14, 1957, the Orphans’ Court denied the petitions of Foust and Felder, of the City of Philadelphia, and of the Commonwealth of Pennsylvania, for reconsideration and vacation of its decree entered September 11, 1957 (the one dismissing the petitions of the applicants and removing the Board). In denying the petitions the Court said: “We are of one mind that the Supreme Court of Pennsylvania in its opinion filed in this case on November 12, 1956, (386 Pa. 548) squarely ruled upon all of these issues. We are bound by that decision. Our decree of September 11, 1957, is in conformity therewith.”
Before such a statement, one can only stand in awe. What the Orphans’ Court overlooks, and it is a strange oversight indeed, is that the decision of this Court from which the above quotation was taken, was reversed by the Supreme Court of the United States! And when a decision is reversed it is like the Andrea Doria at the bottom of the sea. It sinks in' its entirety, not only in part. Rudder, bridge, hull, superstructure, compass, and quadrant all go. Thus, it is futile for the Orphans’ Court to say that it is charting its course by compass and quadrant which are rusting in the submarine cemetery of law which is no more.
*471The action of the Orphans’ Court in dismissing the Board of City Trusts and appointing thirteen so-called private trustees to operate the Girard Estate was more than an act of dubious legality. It was one of manifest illegality. By a stroke of the pen the Orphans’ Court, if its action is not reversed, siphons $98,000,000 from the Treasury of the City of Philadelphia into the depositary of thirteen private individuals without compensation to the City, it reads into the will of Stephen Girard language which is not there, it passes over language which is there, it nullifies State statutes and City ordinances, it loses sight of a Constitutional amendment and misreads the plain wording of the mandate of the Supreme Court. However, it is interesting to observe that the Orphans’ Court is. not too certain, in spite of its assertion that its course was “clearly charted”, that it is entirely confident that the course it selected actually conducts to the port it is seeking. In appointing thirteen private trustees, it chose six of them from the Board of City Trusts which it had already declared as disqualified and incompetent! It could not have believed that the Board was entirely disqualified and incompetent when it accepted almost 50% of the Board’s membership to participate in the so-called private trusteeship. And it is well to observe, as pointed out by counsel for the City of Philadelphia, that: “These six constituted a majority of the living appointed members of the Board of Directors of City Trusts and included five of the eight members of the executive committee of the Board.” .
Does pinning a badge of private trustee on six heretofore declared public trustees remove the so-called incompeteney of which the Orphans’ Court speaks? It is interesting to note also that although, according to the Orphans’ Court, the Board of City Trusts has been disbanded, it appears in this appellate litigation as an *472appellee, thus being triumphant at its own supposed funeral.
It is enigmatic to me why this Court sent the case back to the Orphans’ Court after the Supreme Court stated quite clearly what its decision was. This Court had decided that Foust and Felder should not be admitted to Girard College. The Supreme Court reversed that decision. What else could have been meant than that Foust and Felder were now to be admitted? The Majority Opinion makes a point of the language used by the Supreme Court in its order remanding the cause for “further proceedings not inconsistent with this ©pinion.” What proceedings would there be other than admitting Foust and Felder to Girard College? There was nothing else pending. The admittance or rejection of the applicants was the only issue in the entire litigation. In support of its position of exclusion the Majority cites the case of Sweatt v. Painter, 339 U. S. 629. The Supreme Court there held that the “Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School.” It also used the language embodied in the case at bar, namely, “The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion.” In the case at bar the applicants are minors. There are certain preliminaries which must be attended to before they may be admitted, even following a decision which would admit them on the ground that the Girard College is a public institution: there must be certain releases from relatives, the City must become the guardian, indenturing must be considered. “Further proceedings” obviously refers to the entire operation required to get Foust and Felder into Girard College, which certainly an appellate court would not spell out in detail.
*473I will now address myself more particularly to the Majority Opinion of this Court which affirms in toto the action of the Orphans’ Court. At the outset I will say that several of the cases cited by the Majority support the position of the appellants rather than the appellees. For instance, in Vidal et al. v. Girard’s Executors, 43 U. S. 126, the Supreme Court held that the City of Philadelphia was legally capable of executing the Girard trust. In Girard v. Philadelphia, 74 U. S. 1, the question again arose as to whether the City of Philadelphia, after the consolidation Act of 1854, could still function as trustee of the Girard estate. The Supreme Court held that it could and should so function.
The Majority cites Holdship v. Patterson, 7 Watts 547, 511, where Chief Justice Gibson said that a testator “has an individual right of property in the execution of the trust, and to deprive him of it would be a fraud on his generosity.”
This is like quoting the Ten Commandments or reassuring the world that honesty is the best policy. The quotation asserts an immutable principle in the law, but its application in the Eoldship case bears no logical relationship to what is involved in the case at bar, as will be observed from the syllabus of the case which succinctly states: “A benefactor may provide for a friend the means of subsistence for himself and family, without exposing his bounty to the debts or improvidence of the beneficiary. He has an individual right of property in the execution of the trust, of which he cannot be deprived by an execution against the trustee.”
The Majority quotes the aphorism that “the trustee must be fitted to the trust and not the trust to the trustee.” But, like many aphorisms, this also has its counterpart, and that counterpart is to be found in Section 397 of the Restatement, Trusts, namely, “If *474the settlor manifests an intention that the intended charitable trust shall not arise or shall not continue . . . unless the person named by him acts as trustee, ... the intended charitable trust fails unless the person named by him as trustee acts as trustee.” *
Nothing could be clearer in Girard’s will than that he intended the City of Philadelphia to be the trustee of his estate. In fact, as already indicated, the failurp of the City to qualify would bring about a termination of the trust, and the passing over to the remainder-man, the Commonwealth of Pennsylvania.
The Majority Opinion says that: “It is not possible to read Girard’s will without being deeply impressed with the fact that it was the college, as a private cha/rity, and not the trusteeship of the city, that was the primary object of the donor’s testamentary scheme.” (Italics in original)
This, of course, is like saying that one is more interested in the maintenance and operation of an office building than he is in the architect who is to build it. But he cannot have a building without the architect. Girard could not have a college without a trustee, and he specified that the trustee should be the City of Philadelphia. The City was the horse and the college the carriage. Without the horse the carriage could go nowhere.
- The Majority admits that the trustee “was a necessary and unavoidable incident of the trust,” and thus the testator availed himself of the services of the City., The Majority errs, however, when it says that in select-1 ing the City, Girard “availed himself of the services *475of the only existing local corporate body capable of administering the trust in perpetuity.”
The Majority of this Court* uttered this, same inaccuracy in its Opinion in the Girard Will Case, 386 Pa. 548. Its repetition does not improve its standing in the realm of facts and realities. The fact of the matter is that continuous trustees were not rare in 1830. An advertisement in the New York Evening Post, August 6, 1822, proclaimed: “The public will readily perceive, that the advantages of this company to protect property for the benefit of infants or others, are far greater than those of individual executors or other trustees, who are always liable to casualties ... By placing such property in the charge of this company, who have continued succession, there can be no danger whatever of any such casualties.”** (Italics in original)
When Girard wrote his will there were many corporate fiduciaries to handle trusts in perpetuity.*** Girard could also have provided for a self-perpetuating board of trustees if he had chosen to do so. The Dartmouth College charter provided for such a board.****
In stating that Girard chose the City of Philadelphia as trustee only because of its perpetual existence, the Majority speculates. But why speculate, when it is so evident why Girard made his particular selection? Girard wanted the City of Philadelphia to run the College because the City government was made up of representatives of the people. Girard knew that with *476public operation, the College would be continually bathed in the spotlight of popular interest so that if any part of the citadel began to fall, because of incompetent management or corruption, the people could at the polls oust the bunglers or malefactors. Is this statement merely a deduction from the evidence in the case? Is it a conclusion drawn only from the history of the institution and the litigation which has gone with it? It is not. As respectable as such an argument would be, we do not depend alone upon history, logic, and reasonableness of view. We find Girard’s specific intention expressed in the parchment of his last will and testament, namely, “In relation to the organization of the college and its appendages, I leave, necessarily many details to the Mayor, Aldermen and Citizens of Philadelphia and their successors; and I do so, with the more confidence, as, from the nature of my bequests and the benefit to result from them, I trust that my fellow citizens of Philadelphia, will observe and evince special care and anxiety in selecting members for their City Councils and other agents (Art. XXI, Sec. 9)
If language of this specificity can be ignored, then fogs of confusion have enveloped the dictionary, and mists of ambiguity have made written communication of thought a snare and a delusion. Girard had but one underlying purpose in the disposition of his secular riches, and that was to benefit Philadelphia, that is, its people, and it certainly was not illogical thinking on his part to conclude that the best sentinels to stand guard over his bequeathed treasures were the representatives of those who would enjoy his largess.
The Majority even goes so far as to say, quoting from the Majority Opinion in the Girard Will Case, 386 Pa. 548, that the Girard College is not a school at all, but “a home where the fatherless boys eat, sleep, *477study and live together.” If we omit the word “fatherless,” how does that language differ from a description of any other male college? Is not the Lafayette College in Easton a home where boys eat, sleep, study and live together? Is that also not true of LaSalle College in Philadelphia, and Haverford College in Haverford, and Kings College in Wilkes-Barre? Girard College differs from these named colleges only in that the Girard students do not pay for tuition or maintenance, but, then, students do not pay for tuition or maintenance at the Naval Academy at Annapolis or the Military Academy at West Point, so that payment or nonpayment is not the criterion by which one determines whether an institution is a school or not.
The Majority Opinion says that: “Not a penny of State or city money has ever gone into it [Girard College]; no taxpayer has even been called upon to contribute to it.” This argument was used in the Girard Will Case in 1956 by the then Majority of this Court. It was shown then to be without substantiation, but it is here being repeated and served again, but with no more flavor of plausibility than attended its original appearance on the platter of consideration. How can the Majority ignore that the State and the City have spent “not a penny” but countless tens and perhaps hundreds of thousands of dollars in making Girard College the institution it is today? Who can calculate the cost to the State of the printing, clerk hire, and secretarial service which went into the actions of the General Assembly in holding hearings, conducting investigations, drafting bills and enacting them into law? Who knows how much it cost the City of Philadelphia for the investigations and hearings attendant on the 48 ordinances passed by the Council of Philadelphia with regard to Girard College? How much of government money was spent in salaries for *478State and City officials who gave of their official time in behalf of Girard College? Who can calculate how much it cost the City of Philadelphia and the General Assembly prior to 1869 to organize and actually operate the College? Who knows how much it cost for all the special visitations, for the audits, for the inspections and examinations conducted by the State of Pennsylvania and the City of Philadelphia in behalf of Girard College? Who knows what it cost the City to work out the investments which have increased the capital of Girard College from $2,000,000 to $98,000,000?*
The Majority says that “The Supreme Court did not say that there is any Constitutional or other legal barrier to the removal of the Board of City Trusts as trustee of Girard College in order that the orphanage can be administered in accordance with all of the testator’s express directions including the qualifications for admission to the student body.” The Supreme Court did not say that there could be a legal barrier to the removal of the Board of City Trusts because there was no necessity to say that. It decided only the issue before it. There certainly would have been no point in saying what this Court should do with regard to the Board of City Trusts, and certainly there would have been no point in referring to other persons who might be brought forward as potential trustees.
The Majority Opinion says that some of the legislative enactments in behalf of the Girard Estate were “purely administrative neither envisioned nor required by Girard’s will,” but if there can be a difference of opinion on this point, there should be none on the point that that legislation was the pulmotor to the Girard *479estate which, had it not been for the direction, supervision, and expert business management given by legislatively created agencies, would have perished.
The Majority says that what Chief Justice Lowrie said in the case of Philadelphia v. Girard’s Heirs, 45 Pa. 9, 25, is “peculiarly apposite here.” Chief Justice Lowrie said in that case, as quoted by the Majority: “In all gifts for charitable uses the law makes a very clear distinction between those parts of the writing conveying them, which declares the gift and its purposes, and those which direct the mode of its administration. And this distinction is quite inevitable, for it is founded in the nature of things. We must observe this distinction in studying Mr. Girard’s will, otherwise we run the risk of inverting the natural order of things by subordinating principles to form, the purpose to its means, the actual and executed gift for a known purpose to the prescribed or vaticinated modes of administering it, that are intended for adaptation to an unknown future, and of thus making the chief purpose to the gift dependent on the very often unwise directions prescribed for its future security and efficiency.” This language may be, as the Majority says, very apposite, but it is not very-clear. However, even if we were to gather from the above quotation what Chief Justice Lowrie had in mind, we still do not see how what he said in 1863 can overrule what the Supreme Court of the United States said in 1957.
The Majority says that “on the basis of the compelling testamentary evidence. . . . Girard college is a private charity capable of being lawfully administered by private trustees.” But as I stated before, how can this Court or the Orphans’ Court remove the City as trustee when the will makes the City the trustee? Of course, if the City were incapable, incompetent, or *480unwilling to act as trustee, the Orphans’ Court might then, under the rule that a trust will not fail for want of a trustee, appoint another trustee. But the City is capable, it is competent, it is willing to act as trustee. Why then should it be removed when the removal runs counter to the wishes of the testator? The provision in the Girard will that the college be limited to male white orphans is no stronger a provision than that the City should administer and care for the estate. The City of Philadelphia is the tabernacle of the Girard Estate, it is the ark of the covenant. The whole history of the legislation, maintenance, direction of Girard College and the litigation over the estate is permeated with Philadelphia. Girard College is as much a part of Philadelphia as Benjamin Franklin is indelibly a part of Philadelphia’s history.
This Court has heretofore looked with a rather critical eye on the business of the removal of a trustee. In Mathues’s Estate, 322 Pa. 358, Chief Justice Kephart said: “The removal of a trustee is a di’astie action, which should only be taken when the estate is actually endangered and intervention is necessary to save trust property.”
In Hartman’s Estate, 331 Pa. 422, 428, we said: “Where there is no loss to any of the parties in interest, courts are reluctant to remove fiduciaries appointed by will.”
United States Circuit Court Judge Riddick said in the case of Sternberg et al. v. St. Louis Union Trust Co., 163 F. 2nd 714, 719 (certiorari denied 68 S. Ct. 267) : “A trustee appointed by will or deed may not be removed by the courts unless there appears a clear necessity for the removal to save the trust property.”
Certainly there is no such necessity here.
It could never have been Girard’s intention that, ■with an amendment to the United States Constitution, *481all his plans should go awry. He could never have intended that when the United States Constitution went in one direction, his college should go in another. He was interested in founding a college for poor male children. He said “white male orphans” because the times and the law would not have permitted a collective school for free children and slave children. That was the whole sum and substance of his statement. The language of the whole will demonstrates this, Girard’s whole life proves it.
Even if we were to assume arguendo that by substitution of trustees Girard College would become a private trust, the question would still remain: Is the substitution of trustees legally proper? The Majority says that the substitution of trustees is necessary in order to carry out Girard’s primary intent. The Majority reasons itself into assuming that Girard’s primary intent was to exclude Negroes from Girard College. But such an assumption is to attribute to Girard an intent which is not only contradictory to Girard’s history of dedication to the furtherance and betterment of the welfare of the people but it is in opposition to the terms of his will. The Majority quotes from Girard’s will — “only ‘after providing for the College as hereinbefore directed as my primary object/ ” the Majority emphasizing the words “primary object.” Girard’s primary object, true, was the establishment and maintenance of the college but his primary object was not to exclude Negro orphans from that college.
What would Girard say today if he could be asked whether he desired that a private trustee administer the College? Would he answer that he wishes Negroes to be excluded and thus lose all the benefits of a government-administered trust, or would he say that the City of Philadelphia, though it may no longer bár *482Negroes because of tbe Fourteenth Amendment of the United States Constitution, should continue the administration with all the benefits attendant upon public administration? To strip from Girard College all the advantages of governmental administration such as tax exemptions, guaranteed investments, municipal supervision, State protection, publicly audited accounts, etc., only so that Negroes may be excluded from Girard College, is not to carry out Girard’s primary purpose, but to defeat it! In view of the almost nonexistent rights of Negroes at the time Girard wrote his will, it is in accordance with history, with law, and established facts, to conclude that Girard’s failure to include them as specified beneficiaries of his bounty was merely the result of his passive acceptance of conditions as they then existed. In any event, his failure to include Negroes does not evidence a primary intent that if they cannot be excluded by the City as trustee then Girard College must lose all the benefits which Girard expressly and specifically sought by providing for a governmental trustee.
The Majority devotes a page to the powers of the Orphans’ Court of Philadelphia. No one questions its powers. What is questioned is the use of its powers in this case. The Majority says that the Fiduciaries Act of 1949 confers authority on the Orphans’ Court to remove a trustee “when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office.” But where is the proof in this case that the interests of the Girard Estate are likely to be jeopardized by the continuance in office of the Board of City Trusts, which has been a guardian angel to the Girard Estate and a ministering angel to the Girard College?
The Majority quotes from Stevens’s Estate, 200 Pa. 318, which speaks of the power of Chancery to remové *483a trustee who lacks power to execute a trust. Again, we agree on the law, but again I must say that the Majority-cited law has no application to this case. It is not contended here at all that the Board of City Trusts lacks power in executing the trust.
The Majority says that when a charity is established, “such a slight impediment as a defect or want of power in the trustee to execute it does not stand in the way; the charity remains; the trustee is declared incapable of acting, and a competent trustee is appointed in his place.” But there is no adjudication that the Board of City Trusts labors under any want of capacity or power to administer the Girard College in accordance with the nature and purpose of the Girard will. The Supreme Court of the United States held that under the present state of the law the Board of City Trusts may not exclude Foust and Felder from Girard College. As I" have already indicated, it did not say that the trustee was incapable. It did not say that the trustee should be removed. It said that the machinery running Girard College was governmental. It did not suggest that the machinery should or even could be removed. It recognized a fact, namely, that Girard College is a public institution and that, therefore, this Court should initiate such proceedings as would be necessary to put its decision into effect. This could only mean that, once the necessary preliminaries were attended to, Foust and Felder were to be admitted to Girard College.
The Majority Opinion states in the way of a concession that “... a State agency, even when acting as the trustee of a private charity, can have no part in the enforcement of a racially discriminatory restriction ...” (Emphasis in original). This is not the core of the case. As I have already discussed, the real questions are whether or not a private trustee may or should be *484substituted for the Board of City Trusts, and if such substitution of trustees would make Girard College a private institution so as to take its administration out of the reach of the Fourteenth Amendment. I believe that negative answers to such questions are as inevitable as the daily sunrise.
Furthermore the Majority overlooks one of the most vital provisions of the will, and to which I have already adverted, namely: “But, if the said city hall shall knowingly and wilfully violate any of the conditions hereinabove and hereinafter mentioned, then I give and bequeath the said remainder and accumulations to the Commonwealth of Pennsylvania, ... excepting however, the rents, issues and profits of my real estate in the City and County of Philadelphia, which shall forever be reserved and applied to maintain the aforesaid College, in the manner specified in the last paragraph of the XXIst clause of this will.” If the Orphans’ Court felt that the City knowingly and wilfully violated Girard’s will by pressing for admittance of Foust and Felder into Girard College, it could only declare a termination of the trust under the above-quoted terms of the will, since Girard had already provided for an alternative gift upon failure of the specifically named trustee to administer the estate. The Majority overlooks our statute of April 24, 1947, P.L. 100, §10, which reads: “Except as otherwise provided by the conveyor, if the charitable purpose for which an interest shall be conveyed shall be or become indefinite or impossible or impractical of fulfilment, or if it shall not have been carried out for want of a trustee or because of the failure of a trustee to designate such purpose, the court may, on application of the trustee or of any interested person or of the Attorney General of the Commonwealth, after proof of notice to the Attorney General of the Commonwealth *485when he is not the petitioner, order an administration or distribution of the estate for a charitable purpose in a manner as nearly as possible to fulfill the intention of the conveyor, whether his charitable intent be general or specific.”
Public welfare would not approve of such a termination. Girard would be appalled at such a termination. Girard regarded the founding and the continued existence of Girard College so essentially a crystallization of his intention that he conditioned his very trust on it. The administration of the trust by the City of Philadelphia should therefore continue as heretofore, minus the unconstitutional requirement.
A dissenting opinion that is earnestly written because the writer is disheartened at what he sees to be a manifest violation of legal principles may extend itself into an inordinate length since he wants to answer every paragraph, sentence, and phrase which contributes to the palpable injustice. However, there must be an end somewhere and I know of no better citation with which to terminate this Opinion than the case of Kerr v. Enoch Pratt Free Library of Baltimore City, 149 F. 2nd 212, cert. denied, 326 U. S. 721, where the facts are sufficiently similar to the ones in the case at bar as to make the reasoning therein unanswerable by the Majority in this case. Enoch Pratt of Baltimore gave to that City a library with certain conditions which were met by the Maryland Legislature and the Baltimore City Council. Funds were subsequently contributed to the institution by Andrew Carnegie. After the library had been operating some time, a Negro girl applied for admission as a trainee in the institution. The application was rejected and she appealed to the Courts, claiming that equal protection of the laws had been denied her. The United States Circuit Court of Appeals (Fourth District) upheld her *486contention. Chief Judge Soper, speaking for the Court, said:
“The donor could have formed a private corporation under the general permissive statutes of Maryland with power both to own the property and to manage the business of the Library independent of the State. He chose instead to seek the aid of the state to found a public institution to be owned and supported by the city but to be operated by a self-perpetuating board of trustees to safeguard it from political manipulation; and this was accomplished by special act of the legislature with the result that the powers and obligations of the city and trustees were not conferred by Mr. Pratt but by the state at the very inception of the enterprise ... It is our view that although Pratt furnished the inspiration and the funds initially, the authority of the state was invoked to create the institution and to vest the power of ownership in one instrumentality and the power of management in another, with the injunction upon the former to see to it that the latter faithfully performed its trust. We know of no reason why the state cannot create separate agencies to carry on its work in this manner, and when it does so, they become subject to the constitutional restraints upon the state itself.”
I would admit William Ashe Foust and Robert Felder to Girard College.
According to Everyman’s Smaller Classical Dictionary by E. H. Blakeney and J. Warmington the modern equivalent of a drachma would be' about 8 pence; so that the prodigal Caesar left to each Boman'.citizen approximately twelve dollars.
Italics throughout,. mine, unless otherwise indicated..
The City Solicitor of Philadelphia well says in his excellent brief that: “The private property owned by Girard at the time of his death no longer exists, except in a highly mystical sense.’
87th Animal Report, Board of Directors of City Trusts, p. 12.
Each of these statutes is entitled “An Act Relative to Girard College,” and none uses the phrase “white-male orphans.”
The funds of the College and those of the City have been so intermingled that the City Council used income from the Girard Estate for municipal purposes other than the College, amounting to $571,958.42, in the years 1833 to 1848 inclusive. (Report of Hon. George Wharton Pepper, Auditor).
If the administration of a laboratory for medical research is assigned to a physician, the substitution of a shoemaker might well wreck the institution and in such ease it would be better that the trust fail than that the health and life of patients should be jeopardized.
Tlie membership is slightly changed since 1956.
I apologize for this item, taken from my Dissenting Opinion in the Girard Will Case, supra, Imt since the Majority repeated what it said in that case, on this subject, I had no recourse but to go to the same cupboard for the antidote.
Smith. Development of Trust Companies in the United States.
Trustees of Dartmouth College v. Woodward, 17 U. S. 518.
I apologize again for repeating wliat I said in my Dissenting Opinion in The Girard Will Case, but that statement is as true today as it was in 1956, just as the Majority’s statement is as unveritable today as it was in 1956.